JUDGMENT H.L. Capoor, J. - Kali Charan has preferred this appeal against the judgement and order, dated 21st August, 1970, of Sri B. N. Jain, II Temporary Civil and Sessions Judge, Jhansi, convicting the appellant under section 406 I.P.C. and sentencing him to 2 years' R.I. and to pay a fine of Rs. 3000, and in default of payment of fine to undergo rigorous imprisonment for a further period of nine months. 2. It is an admitted fact that there is a Sadhan Sahkari Samiti in village Kairo-khar which comes within the jurisdiction of Bamour Block, police circle Garotha, district Jhansi. It is a registered body having its bye laws, Ex. 16, bearing the signature of the then Sarpanch Makradhwaj and the Panches Mukut Behari P.W. 17, and two other Panches. This Samiti could take loan from the Bank and thereafter distribute it amongst the members of the Samiti. The loan was to he realised back from the members within a year and used to be deposited in the bank. Again the Bank on the basis of that deposit used to advance loan to the Samiti. Thus, the working of this Samiti used to go on. The appellant was admittedly the elected Sarpanch of the said Samiti by its members through its resolution, dated 12th January, 1963, which is Ex. Ka-6. According to the prosecution version the Tehvil of the Samiti used to remain with the appellant. Chandra Bhan Singh, P.W. 3, was the Accountant of the said Samiti being one of its member. His duty was to keep accounts book, that is, the proceedings book cash book, Khatas of members and bonds and for this work lie used to get Rs. 25 per month. Chandra Bhan Singh was working as an Accountant since 1959 and continued upto 1965. Thereafter Mukut Behari, P. IV. 17, was elected the Khazanchi of the said Samiti. The duty of the accountant was to make entries in cash book of the loan which was given to said- Samiti by the Cooperative Bank. In fact, the duty of the Khazanchi was to maintain, the Rokarbahi, but Chandra Bhan Singh maintained the Rokarbahi of the Samiti during the relevant time upto 1st May, 1963. Thereafter, Mukut Behari himself maintained this Rokarbahi. The Sarpanch and Khazanchi used to withdraw money from the District Cooperative Bank. In fact, the duty of the Khazanchi was to maintain, the Rokarbahi, but Chandra Bhan Singh maintained the Rokarbahi of the Samiti during the relevant time upto 1st May, 1963. Thereafter, Mukut Behari himself maintained this Rokarbahi. The Sarpanch and Khazanchi used to withdraw money from the District Cooperative Bank. It was, however, the duty of the appellant to keep the cash and he, himself, used to distribute the money amongst the members. The appellant in his capacity as Sarpanch used to realise money from the members of the Samiti and used to make entries in the Pass Books of the members. According to the prosecution, the receipt of money from the Bank and other sources, the expenditure and loans given to the members used to be entered in Rokarbahi, Ex. 1, and cash book, Ex. 3, and the appellant used to sign these registers in token of the money being received by him. 3. It is alleged by the prosecution that on 12th January, 1963, when the appellant was elected Sarpanch a sum of Rs. 97-41 was entrusted to him by Mukut Behari, Khazanchi, and the appellant put his signature in column no. 8 of the Rokarbahi, Ex. 1. On 5th April, 1963, again the appellant in his capacity as Sarpanch had received a sum of Rs. 201-41 and his signature Ex. Ka-9 was obtained in column no. 8 of the Rokarbahi. He was also said to have realised a sum of Rs. 4826-20 from the members, the total having come to Rs. 5027-61 and as against this item in the cash book the appellant put his signature which is Ex. Ka-10. Again, the appellant is said to have received a sum of Rs. 10,160-00 from the Co- operative Bank on 10th April, 1963, the total having come to Rs. 15,187-61 in respect of which he again put his signature in column no. 8 of the Rokarbahi. According to the prosecution version, a sum of Rs. 10, 160-00 was distributed amongst the members of the Samiti on 11th April, 1963, leaving a balance of Rs. 5027-61 with the appellant and in token of it his signature, Ex. Ka-12, again was obtained in column no. 8 of the Rokarbahi. On the same day a sum Rs. 1087-25 was realised by the appellant from three members, the total saving come to Rs 6, 100-86 and again he put his signature, Ex. 5027-61 with the appellant and in token of it his signature, Ex. Ka-12, again was obtained in column no. 8 of the Rokarbahi. On the same day a sum Rs. 1087-25 was realised by the appellant from three members, the total saving come to Rs 6, 100-86 and again he put his signature, Ex. Ka-13, in the Rokarbahi. The prosecution has further alleged that the appellant continued to put his signatures against all the entries in the Rokarbahi and Ex. Ka-14 is his signature in respect of a sum of Rs. 59 24 on 30th April, 1963. Again, he realised a sum of Rs. 2327-57 from the members, the amount there by having come to Rs. 2391-96. Again, on this entry his signature finds place. In the entries of the Rokarbahi from Ist May, 1963 to 21st September, 1963, the signatures of Mukut Behari and the appellant find place with regard to the cash on a particular day with them. Mukut Behari was said to have realised a sum of Rs. 152-50 from the members of the Samiti and he deposited this amount also in the Rokarbahi. It is alleged by the prosecution that Sri Ram Swarup, P.W. 2, the A. D. O. went to Kairokhar on 21st and 22nd September, 1963 along with Sri Sharda Prasad Tripathi and having checked the Rokarbahi of the Samiti discovered that a sum of Rs, 4760-10 was out standing with the Samiti. The appellant at that time gave out to Sri Ram Swarup that out of the said amount some money was with Mukut Behari, Khazanchi, that the appellant had given a sum of Rs. 2022-27 to Mukut Behari 2-3 days be- fore the arrival of the checking party for depositing it in the Bank, and that a sum of Rs. 152-50 was also with Mukut Behari in respect of manure collection. It is further alleged that out of this amount of the Samiti in the Rokarbahi, Mukut Behari under took the responsibility of depositing a sum of Rs. 2174-27 in the Co-operative Bank of September 25, 1963; and the appellant under took the responsibility of depositing a sum of Rs. 2585-83 in the District Cooperative Bank by 30th September, 1963, and in token of acknowledging the said liability Mukut Behari gave the writing Ex. Ka-2 in his own hand and the appellant gave the writing, Ex. Ka-4, on the same day. 2585-83 in the District Cooperative Bank by 30th September, 1963, and in token of acknowledging the said liability Mukut Behari gave the writing Ex. Ka-2 in his own hand and the appellant gave the writing, Ex. Ka-4, on the same day. The said amount not hung deposited y the appellant, the Assistant Registrar, sent the ,report, Ex. Ka-1 on 12th November, 1965, to the Superintendent of Police, Jhansi. 4. Sri Sughriv Prasad Sharma, Sub- Inspector, investigated the case and after the submission of a chargesheet a case under section 409 I.P.C. wag registered against the appellant. 5. On the transfer of Sri Sughriv Prasad Sharma, some of the investigation was also made by Sri Kanhaiya Pande, Sub-Inspector, P.W. 15. 6. The appellant pleaded not guilty and denied to have committed any offence. He merely stated in his defence before the committing magistrate that he had been implicated in the case due to enamity. He, however, admitted to have been the Sarpanch of the said Samiti. He further admitted to have put his signatures in column no. 8 of the Rokarbahi, Ex. 1, but his defence was that he had put his signatures only to the effect that the amount mentioned in those entries was with Mukut Behari, because it was not decided that he will be responsible for the amount. He further added that certain entries were made in his hand writing at the instance of Mukut Behari. .His further defence was that in fact the entire amount remained with Mukut Behari that it was only at the threatening of the Assistant Development officer that if he did not deposit the amount he would be sent to jail that he signed the entry, Ex. Ka-4, and that, in fact no amount was out standing against him. He further stated that he had been implicated at the instance of Chandra Bhan Singh with whom he was on enemical terms. No defence evidence was however, addused on his behalf. 7. The prosecution in support of its case examined 19 witnesses, out of whom Sri Virendra Singh, Assistant Registrar, P.W. 1, proved the report sent by him to the Superintendent of Police, Jhansi, and Sri Ram Swarup, P.W. 2, and Chandra Bhan Singh, P.W. 3, proved the various entries made in the Rokarbahi, Ex. 7. The prosecution in support of its case examined 19 witnesses, out of whom Sri Virendra Singh, Assistant Registrar, P.W. 1, proved the report sent by him to the Superintendent of Police, Jhansi, and Sri Ram Swarup, P.W. 2, and Chandra Bhan Singh, P.W. 3, proved the various entries made in the Rokarbahi, Ex. 1 Bhagirath, P.W. 4, Baijnath, P.W. 5, Dayal, P.W. .6, Manik, P.W. 7, Ram Charan, P.W. 8, Jhalle, P.W. 9, Mukundi, P.W. 10, Nathu, P.W. 13, and Punnu, P.W. 14, deposed that the duty of the Sarpanch was to realise money and that certain amounts were paid by each of them for the Samiti which were received by the appellant. Mukut Behari, P.W. 17, the Khazanchi, has also proved various entries in the Rokarbahi and the signatures of the appellant put below those entries. Sri Chhunni Lal Sharma, P.W. 12, the handwriting Expert, deposed that the entries in the pass Books were in the handwriting of the appellant and this fact, as a matter of fact, was admitted by the appellant. The rest of the witnesses examined are merely formal except that Sri Sugriv Prasad Sharma, Sri Kanhaiya Pande and Sri Ausaf Ali, all Sub-Inspectors, investigated the case. 8. The learned Sessions judge after considering the evidence on record and placing reliance upon the statement of the said witnesses of fact coupled with the admission made by the appellant him self and disbelieving the defence version arrived at the findings that there were no doubt same discrepancies in the account books and some irregularity was committed in maintaining them, but they were not of much assistance to the appellant particularly when he admitted his signatures on the entries in token of having received certain amounts be- longing to the Samiti from various per- sons, that it was amply proved from the own writing Ex. Ka-4 of the appellant in which he undertook to pay a sum of Rs. 2585-83 belonging to the Samiti by 30th September,' 1963, and that this amount not being paid by him he committed the offence under section 409 I.P.C. He, accordingly, convicted and sentenced him as aforesaid. 9. Ka-4 of the appellant in which he undertook to pay a sum of Rs. 2585-83 belonging to the Samiti by 30th September,' 1963, and that this amount not being paid by him he committed the offence under section 409 I.P.C. He, accordingly, convicted and sentenced him as aforesaid. 9. Learned counsel for the appellant has mainly relied upon the finding arrived at by the court below that there were certain discrepancies in the account books and some irregularity was also committed in maintaining them with the result that it could not be said to be proved beyond reasonable doubt as to what actual amount belonging to the Samiti was due from the appellant, and, secondly, that the appellant having acknowledged by means of the writing Ex. Ka-4 that a sum of Rs. 2585-83 belonging to the Samiti was found to be outstanding against him, it could not be said that he had taken the responsibility of paying this amount particularly when the account books were irregular containing discrepancies in them. It is amply proved from the statements of the witnesses as given above that several sums of money were received by either Mukut Behari or the appellant and that in lieu of the receipt of those amount the appellant had put his signatures on, all of them. This fact is admitted by him. In these circumstances merely by the fact that there were some discrepancies and irregularities committed in maintaining the account books, it could not be said that the amount of Rs. 2585-83 was not entrusted to him and that he had not committed the offence in not having paid that amount to the Samiti. Ex. Ka-4 clearly indicates that a sum of Rs. 2585-83 was outstanding against the appellant for which he undertook the responsibility of depositing it by 30th September, 1963. In the absence of this not being done by the (late as given above, the appellant stated in Ex. Ka-4, that the Samiti would he at liberty to realise that amount from him. 10. The question, however, arises that it has not been proved that the appellant being a Sarpanch was a public servant. Moreover, it also could not be proved from the by laws that the responsibility to realise money was that of the appellant. Ka-4, that the Samiti would he at liberty to realise that amount from him. 10. The question, however, arises that it has not been proved that the appellant being a Sarpanch was a public servant. Moreover, it also could not be proved from the by laws that the responsibility to realise money was that of the appellant. Thus, it would be safer to convict the appellant under section 403 I.P.C. instead of section 406 I.P.C. because it is definitely proved by the prosecution that the appellant in his capacity as Sarpanch dishonestly misappropriated or converted to his own use the sum of Rs. 2565-83 as acknowledged by him in Ex. Ka-4. 11. In the result, the appeal is allowed only to this extent that the conviction and sentence of the appellant under section 406 I.P.C. are set aside, but he is convicted under section 403 I.P.C. and is sentenced to one year's R. I. and to pay a fine of Rs. 3000, and in default of payment of fine to undergo further rigorous imprisonment for nine months. The appellant is on bail. He shall be taken into custody forthwith to serve out the sentence now i on him. The stay order a the realisation of fine is vacated.